Citation Nr: 0528733
Decision Date: 10/26/05 Archive Date: 11/09/05
DOCKET NO. 03-23 575 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for the veteran's cause of
death.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESSES AT HEARING ON APPEAL
The appellant and her daughter, Ms. J.K.
ATTORNEY FOR THE BOARD
Bernard T. DoMinh, Counsel
INTRODUCTION
The late veteran served on active duty from February 1943 to
December 1945. He served in the European Theater of
Operations during World War II and was awarded the Combat
Infantryman Badge. The appellant is his widow.
This matter comes to the Board of Veterans' Appeals (Board)
on appeal from a January 2002 rating decision by the Waco,
Texas, Regional Office (RO) of the Department of Veterans
Affairs (VA), which denied the appellant's claim of
entitlement to service connection for the veteran's cause of
death.
FINDINGS OF FACT
The veteran died in October 2001 from acute systolic cardiac
arrest whose underlying causes were progressive cardiogenic
shock, severe ischemic cardiomyopathy, and status post
ventricular tachycardia arrest.
CONCLUSION OF LAW
The veteran's death was not the result of a disability of
service origin, and his service-connected disabilities did
not materially and substantially contribute to his death. 38
U.S.C.A. § 1310 (West 1991); 38 C.F.R. § 3.312 (2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Preliminary Matters
The Veterans Claims Assistance Act of 2000 (VCAA) is
applicable to this appeal. To implement the provisions of
the law, the VA promulgated regulations codified at 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326(a)). The Act and
implementing regulations provides that VA will assist a
claimant in obtaining evidence necessary to substantiate a
claim but is not required to provide assistance to a claimant
if there is no reasonable possibility that such assistance
would aid in substantiating the claim. It also includes new
notification provisions.
The appellant's claim was received in November 2001. The RO
provided the appellant with express notice of the provisions
of the VCAA in correspondence dated in December 2001, in
which it provided the appellant with an explanation of how VA
would assist her in obtaining necessary information and
evidence. The appellant has been made aware of the
information and evidence necessary to substantiate her claim
and has been provided opportunities to submit such evidence.
A review of the claims file also shows that VA has conducted
reasonable efforts to assist her in obtaining evidence
necessary to substantiate her claim during the course of this
appeal. The late veteran's service medical records, post-
service private and VA medical records dated from 1951 to
2001, the report of his terminal hospitalization in October
2001, and supportive opinions from the veteran's treating
private physicians have been obtained and associated with his
claims file. The appellant has been provided with the
opportunity to present oral testimony before the Board in
support of her claim. Finally, the appellant has not
identified any additional, relevant evidence that has not
otherwise been requested or obtained. The appellant has been
notified of the evidence and information necessary to
substantiate her claim, and she has been notified of VA's
efforts to assist her. (See Quartuccio v. Principi, 16 Vet.
App. 183 (2002).) As a result of the development that has
been undertaken, there is no reasonable possibility that
further assistance will aid in substantiating the claim. For
these reasons, further development is not necessary to meet
the requirements of 38 U.S.C.A. §§ 5103 and 5103A.
Factual Background
The veteran's death certificate shows that he died in October
2001. His immediate cause of death was acute systolic
cardiac arrest. The certificate lists the underlying causes
as progressive cardiogenic shock, severe ischemic
cardiomyopathy, and status post ventricular tachycardia
arrest. No other causes of death were listed. The death
certificate was signed by R.B.M., M.D. On the date of his
death, the veteran's service-connected disabilities were
residuals of a back injury with traumatic arthritis (rated 40
percent disabling), residuals of a right hip injury with
traumatic arthritis (rated 30 percent disabling), and
residuals of fracture of the 4th and 5th metacarpal bones of
the right (major) hand (rated noncompensably disabling). A
total rating for individual unemployability due to service-
connected disabilities was in effect at the time of his
demise.
The veteran's service medical records show no sustained
elevated blood pressure readings, cardiomegaly on chest X-
ray, or onset of cardiovascular disease during his period of
active duty. His post-service medical records include a VA
medical examination report dated in January 1951, which shows
no abnormal cardiovascular findings.
Private medical records show that the veteran's medical
history at the time of his death in October 2001 included
severe coronary artery disease with single remaining vessel,
hyperlipidemia with aortocoronary bypass grafting, and three
individual angioplasty procedures with stent implantation,
angina pectoris, congestive heart failure, with a family
history that was strongly positive for premature coronary
artery disease and hypertension.
The appellant claims entitlement to service connection for
the cause of the veteran's death. Her essential contention,
as presented in written statements in support of her claim,
and in oral hearing testimony from her and her daughter
before the Board in September 2005, is that the veteran's
service-connected orthopedic disabilities prevented him from
engaging in any sustained physical activity. This inability
to exercise, in turn, worsened his non-service-connected
cardiovascular disease and accelerated the disease process to
the point of death. In support of this theory, she submitted
two statements dated in November 2001 and November 2003 from
the veteran's treating orthopedic physician, M.J.S., M.D.,
and one statement dated in December 2001 from the veteran's
cardiologist, R.B.M., M.D.
Dr. S.'s letter of November 2001 states, in pertinent part,
that the veteran had been having a great deal of pain in his
knees and was unable to ambulate because of the pain. It is
the physician's opinion that the symptoms he was having in
his knees could in fact have contributed to his cardiac
symptoms and eventual demise. The veteran died of a systolic
cardiac arrest and cardiogenic shock."
Dr. M.'s letter of December 2001 stated that he cared for the
veteran during his terminal hospitalization. The veteran was
diagnosed with progressive angina and severe coronary artery
disease. He was also noted to have severe osteoarthritis
affecting his lower extremities, especially the knees, and
with ambulation he developed recurrent knee pain along with
exacerbation of his angina. On the morning of his death, the
veteran complained of bilateral osteoarthritis in his knees
with acute swelling of both knees. Dr. J.S. was consulted
because of the severity of the increased pain in the knees
knowing this would limit ambulatory ability in recovery and
put more stress on the veteran's cardiovascular system. Dr.
S. was scheduled to consult the morning after the died. It
was opined that in the acute phase of the patient's final
days he was suffering from both severe angina and severe
osteoarthritis of the legs precluding his ability to maintain
quality of life and both of these exacerbated his condition
requiring aggressive attempt at improving the patient's
quality of life.
Dr. S.'s letter of November 2001 states, in pertinent part,
the following opinion that the veteran had weakness of his
legs, hips and lower back contributing to his cardiac demise.
He opined that because of these infirmities, the veteran was
not able to maintain a cardiovascular fitness program, which
could have minimized if not prevented his premature demise.
He noted that this assessment was in agreement with Dr. M.'s
statement indicating that the veteran's condition kept him
from maintaining his quality of life. Dr. S. concluded that
because of these problems and the pain that they created,
they certainly contributed to the stress upon the veteran's
heart and his eventual demise.
In a November 2003 statement, Dr. S. opined that the veteran
had weakened of the legs , hips, and lower back contributing
to his cardiac demise. He further indicated that because of
these problems, the veteran was unable to maintain a
cardiovascular fitness program, which could have minimized,
if not prevented his early demise.
Analysis
The death of a veteran will be considered as having been due
to a service-connected disability when the evidence
establishes that such disability was either the principal or
a contributory cause of death. The issue involved will be
determined by exercise of sound judgment, without recourse to
speculation, after a careful analysis has been made of all
the facts and circumstances surrounding the death of the
veteran, including, particularly, autopsy reports. The
service-connected disability will be considered as the
principal (primary) cause of death when such disability,
singly or jointly with some other condition, was the
immediate or underlying cause of death or was etiologically
related thereto. Contributory cause of death is inherently
one not related to the principal cause. In determining
whether the service-connected disability contributed to
death, it must be shown that it contributed substantially or
materially; that it combined to cause death; that it aided or
lent assistance to the production of death. It is not
sufficient to show that it casually shared in producing
death, but rather it must be shown that there was a causal
connection. See 38 C.F.R. § 3.312 (2005).
The Board has reviewed the evidence and finds no basis to
allow service connection on a direct or presumed basis for
the cardiovascular disease which was the veteran's immediate
cause of death. His service medical records do not show
onset of a chronic disease of his heart, arteries, or veins
during his period of military service. The post-service
medical records also do not show onset of cardiovascular
disease to a compensably disabling degree within one year
following his separation from active duty in December 1945 to
permit service connection for cardiovascular disease on a
presumptive basis.
The veteran's widow asserts that his service-connected
orthopedic disabilities contributed to the veteran's death
because his inability to perform physical exercise
exacerbated his heart disease and led to his fatal acute
systolic cardiac arrest. The Board has considered the
statements submitted from Dr. S. and Dr. M. in support of her
claim but finds that they either attribute the contributory
cause of the veteran's death to a non-service-connected
orthopedic disability or are otherwise too speculative and
equivocal to support a determination that the veteran's death
is due to service. Specifically, the November 2001 and
December 2001 letters of these physicians address only the
veteran's non-service-connected knees and his limited
mobility due to painful knee symptoms as an exacerbating
factor to his cardiovascular disease at the time of his
death, and make no mention whatsoever of his service-
connected back and hip disability.
Although the November 2003 letter of Dr. S. includes
reference to the veteran's service-connected hip and back
disability along with his knees as contributing to his
"cardiac demise," the operative sentence in the opinion is
that the veteran's inability to maintain a cardiovascular
fitness program could have minimized if not prevented his
premature demise. This language is too speculative and
equivocal and thus the opinion does not approach the level of
definitive certainty that would warrant investing it with
much probative value. See Tirpak v. Derwinski, 2 Vet. App.
609, 611 (1992); see also Obert v. Brown, 5 Vet. App. 30
(1993).
Furthermore, when Dr. S.'s November 2003 opinion is viewed
with his prior opinion of November 2001, and with Dr. M.'s
opinion of December 2001, it is evident that the orthopedic
disorder primarily associated with the veteran's declining
cardiovascular condition is the non-service-connected knee
disability. Inasmuch as Dr. S.'s November 2003 opinion
states that but for the veteran's knees and service-connected
back and hip preventing him from exercising, he could have
minimized his declining cardiovascular condition or averted
death, the prior medical statements of November 2001 and
December 2001 indicate that the contributions of the back and
hip are substantially eclipsed by the symptoms associated
with the non-service-connected knees. The regulations state
that when determining whether a service-connected disability
contributed to death, it is not sufficient to show that it
casually shared in producing death; it must be shown that it
contributed substantially or materially to cause death. (See
38 C.F.R. § 3.312.) As the medical facts establish that the
veteran's primary cause of death is from acute cardiac arrest
that was primarily due to, or a consequence of his long
history of cardiovascular disease, and that, at best, there
could have been some exacerbation of his cardiovascular
condition from his non-service-connected knee disability with
some lesser contributions from his service-connected back and
hip, the Board finds that this does not support a finding
that the service-connected back and hip contributed
substantially or materially to cause his death. The
appellant's claim for service connection for the veteran's
cause of death is therefore denied.
To the extent that the appellant and her daughter assert the
existence of a link between the veteran's cause of death and
his period of military service based upon their own knowledge
of medicine and their familiarity with the late veteran's
medical history, as the record does not show that either of
them have received the requisite formal medical training and
accreditation to make medical diagnoses or present opinions
regarding issues of medical causation and etiology, their
statements in this regard are not entitled to any probative
weight. See Layno v. Brown, 6 Vet. App. 465 (1994); Espiritu
v. Derwinski, 2 Vet. App. 492, 494 (1992).
ORDER
Service connection for the veteran's cause of death is
denied.
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RENEE M. PELLETIER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs